State v. Jones

• Court: Kansas Supreme Court
• Writing for the Court: OWSLEY
• Citation: State v. Jones, 218 Kan. 720, 545 P.2d 323 (Kan. 1976)
• Decision Date: 24 January 1976
• Docket Number: No. 47874,47874
• Parties: STATE of Kansas, Appellee, v. Samuel F. JONES, Appellant.

Page 323

545 P.2d 323

218 Kan. 720

STATE of Kansas, Appellee, v. Samuel F. JONES, Appellant.

No. 47874.

Supreme Court of Kansas.

Jan. 24, 1976.

Syllabus by the Court

1. The record is examined in a criminal action in which defendant by jury verdict was found guilty of first degree murder (K.S.A. 21-3401) and aggravated robbery (K.S.A. 21-3427), and it is held: The trial court did not err (a) in admitting in evidence a confession of defendant; (b) in refusing to sequester the jury during the course of their deliberations; (c) in permitting the introduction in evidence of photographic slides of the body of the deceased; (d) in refusing to grant a mistrial because of the prosecutor's remarks during closing argument; and (e) in failing to find the evidence was insufficient to support the conviction.

John J. Ambrosio, Topeka, argued the cause and was on the brief for appellant.

Gene M. Olander, Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

OWSLEY, Justice:

Defendant Samuel F. Jones appeals from a conviction of murder in the first degree (K.S.A. 21-3401) and aggravated robbery (K.S.A. 21-3427). Defendant claims numerous trial errors, with special emphasis on the admissibility of his confession.

Charges against defendant stem from the brutal slaying and robbery of a man on a country road north of Topeka in February, 1974. Shortly after the police discovered the mutilated body of the deceased, later identified as Otis Bomar, defendant and two of his companions, Donald Bateson and Samuel Kanive, were arrested and jointly charged with the murder and robbery. Separate trials resulted in convictions of all three defendants. This appeal is brought solely by defendant Jones.

In his first assignment of error, defendant challenges the admissibility of a confession given to the police after extensive interrogation. No question is raised as to the propriety of the procedure followed by the trial court in ruling on its admissibility. A motion to suppress the confession was filed on behalf of defendant and a Jackson v. Denno hearing was held out of the presence of the jury. After considering the totality of the circumstances the trial court ruled the statements were voluntarily made and that defendant had been properly advised of his Miranda rights, which he intelligently and knowingly waived.

It is a firmly established principle of law that to be admissible a confession must have been freely and voluntarily given without compulsion or duress. (State v. McVeigh, 213 Kan. 432, 516 P.2d 918; State v. Milow, 199 Kan. 576, 433 P.2d 538.) The voluntariness of a confession is a question in the first instance for the determination of the trial court, and if there is substantial competent evidence to support the trial court's findings it will not be disturbed on appeal. (State v. Soverns, 215 Kan. 775, 529 P.2d 181; State v. Melton, 207 Kan. 700, 486 P.2d 1361.) The trial court's determination is to be based upon a consideration of the totality of the circumstances, and where there is genuine conflict in the evidence great reliance should be placed upon the finder of fact. (State v. Harden, 206 Kan. 365, 480 P.2d 53, Syl. 2.)

Defendant relies upon three facts to attack the trial court's determination of voluntariness. First, defendant points out that he was taken to police headquarters and questioned for approximately three hours. Second, he emphasizes that during the questioning and prior to giving the confession he was crying and felt he was under pressure. Third, then he asked the officers to leave the interrogation room so he could think, an assistant district attorney remained in the room and stared at him without speaking. Based on these circumstances, defendant contends the resulting confession could not have been a product of free will but was induced by the coercive mental tactics used by the police. It has been recognized by this court that coercion in obtaining a confession may be mental as well as physical, and where it is found that a defendant's will was overborne at the time of the confession such statement will not be admissible. (State v. Soverns, supra; State v. Milow, supra.)

While defendant concedes the circumstances surrounding the interrogation, when examined individually, would not necessarily indicate coercion, he contends that when the totality of the circumstances is considered it is clear the confession was not voluntarily given. In support of his position defendant relies upon Holt v. State, 202 Kan. 759, 451 P.2d 221, where we held the totality of circumstances required the exclusion of a confession obtained from the accused. The same argument was made before the trial court during hearing on the motion to suppress. After considering the facts of both cases the trial court concluded Holt was distinguishable from the case at bar. We concur with its conclusion. Holt involved a prosecution of an uneducated farmer for rape and incest. Prior to trial, the defendant's counsel agreed to terms under which defendant would take a polygraph test. Pursuant to this agreement, the defendant appeared alone at the county attorney's office where he was given a 'psychological preparation' and polygraph examination for a period of about two hours. After the examination was completed, he was taken back to the county attorney's office where he was instructed to tell the truth. Approximately fifteen to twenty minutes passed in which the county attorney and defendant sat silently facing each other across a table. Finally, the defendant blurted out that he had done it and further interrogation resulted in a complete confession. Under those circumstances we held the defendant's confession did not meet the constitutional standards of voluntariness and was inadmissible. In so holding, however, we relied upon the failure of the state to show any evidence from which a waiver of counsel could be inferred. The defendant had ostensibly gone to the county attorney's office solely for the purpose of taking a polygraph examination and he was coerced into giving a confession without the benefit of having been advised of his right to the presence of an attorney and other constitutional rights.

In determining whether a confession was obtained by constitutional means, each case must be decided on the basis of its individual facts and circumstances. In the instant case, defendant was advised of his constitutional rights prior to questioning. The trial court found he intelligently and knowingly waived those rights. After approximately two or three hours of interrogation, defendant requested he be left alone to think. While it is true the district attorney remained in the room without speaking for another ten to fifteen minutes, we do not believe that alone would constitute duress or coercion. Likewise, the fact defendant was crying prior to giving his confession would not require a finding of involuntariness. It is to be expected that an accused charged with the crimes of murder and robbery might be apprehensive and under a certain amount of emotional stress; however, we cannot say that because defendant was crying he could not freely and voluntarily confess to the crimes.

In ruling that the confession was voluntarily made, the trial court considered the totality of the circumstances as shown by the evidence, including defendant's age, sex, education, physical condition, mental state, his treatment while in custody, his background, the fairness of the officers in conducting the interrogation and all other circumstances surrounding the confession. Based on the evidence in the record we cannot say the trial court erred in admitting the confession.

Next, defendant contends the trial court erred in...